Ronan v The State Coroner

[2000] WASC 260

RONAN -v- THE STATE CORONER [2000] WASC 260

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 260
Case No:	CIV:2389/2000	Heard:	18 OCTOBER 2000
Coram:	ANDERSON J	Delivered:	18/10/00
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	GWENDOLINE MAY RONAN THE STATE CORONER
Catchwords:	Coroner Aborigines Application for an order that no post-mortem be performed Discretionary order No suspicious circumstances Relevance of Aboriginal culture and spiritual beliefs Relevance of public interest
Legislation:	Coroners Act 1996 (WA)
Case References:	Green v Johnston (1995) 2 VR 176 Abernethy v Deltz (1996) 29 NSWLR 701 Magdziarz v Heffey, unreported; SCt of Vic; Library No 7635 of 1995; 3 October 1995 Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RONAN -v- THE STATE CORONER [2000] WASC 260 CORAM : ANDERSON J HEARD : 18 OCTOBER 2000 DELIVERED : 18 OCTOBER 2000 FILE NO/S : CIV 2389 of 2000 BETWEEN : GWENDOLINE MAY RONAN

Plaintiff

AND

THE STATE CORONER
Defendant

Catchwords:

Coroner - Aborigines - Application for an order that no post-mortem be performed - Discretionary order - No suspicious circumstances - Relevance of Aboriginal culture and spiritual beliefs - Relevance of public interest

Legislation:

Coroners Act 1996 (WA)

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Ms C P Crawford
Defendant : Ms C J Thatcher

Solicitors:

Plaintiff : Legal Aid Commission
Defendant : State Crown Solicitor

Case(s) referred to in judgment(s):

Green v Johnston (1995) 2 VR 176

Case(s) also cited:

Abernethy v Deltz (1996) 29 NSWLR 701
Magdziarz v Heffey, unreported; SCt of Vic; Library No 7635 of 1995; 3 October 1995
Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65

(Page 3)

1 ANDERSON J: In this case I am prepared to make an order that no post-mortem examination be performed on the body of Jemaine John Tye. My reasons are that there are no suspicious circumstances known to the police surrounding this death. This was an apparently healthy infant, a well-nourished, well-cared-for infant, whose death is unexplained. That ordinarily would, of itself, call for a post-mortem examination including an autopsy in order for the Coroner to carry out properly his coronial duties.

2 In this case there are some signs consistent with an asphyxiation process. Internal examination of organs by autopsy might confirm that this was a case of death by asphyxiation. There is a public interest in knowing if this was a case of death by asphyxiation, even assuming that to have been accidental. If there was an accidental asphyxiation, the most likely cause, it seems to me on all of the known facts, was overlay whilst the child was asleep.

3 I say that because there is no evidence of foul play, there is no evidence of abuse, there is no evidence of neglect, there are no external signs of any injury or trauma of any kind, and there is no evidence of signs of infection. Against that background, I say that if there was an accidental asphyxiation, the most likely cause was overlay of the child by an adult whilst the child was asleep in the bed in which the child was found.

4 If the death was a consequence of that, there is a public health consideration of course involved. That there is a real risk in the practice of co-sleeping with infants of death of the infant is something that should be known to the public, and it is, generally speaking, of importance to know the degree of risk, and that can really only be measured by reference to statistical information. So there is no doubt in this case that there are grounds upon which the Coroner was justified in requiring post-mortem examination including an autopsy, but there is in the Coroner's Act express recognition that these considerations may be displaced by other considerations, and all of what I have said about the public interest in knowing the cause of this death must be weighed against the public interest in giving deeply-held spiritual and cultural beliefs proper recognition and respect.

5 I agree with what Beach J said in the case of Green v Johnston (1995) 2 VR 176 at 179 when his Honour said:

(Page 4)

"In a multicultural society, such as we have in this country, it is my opinion that great weight should be given to the cultural and spiritual laws and practices of various cultural groups forming our society, and that great care should be taken to ensure that their laws and practices, assuming they are otherwise lawful, are not disregarded or abused."

6 I am satisfied in this case that the spiritual beliefs of the family of this child are genuinely held. Those beliefs are set out in the affidavits which have been presented to the Court including two affidavits presented to the Court this morning and read, and they are to the effect that the child's spirit will not rest if the autopsy which is proposed is carried out, and the affidavits satisfy me that if the autopsy is carried out, the belief that that will be the consequence will be a cause of very, very considerable distress to the family and near relatives of the child.

7 It is always of course a balancing exercise; the interests on one side have to be weighed against the interests on the other, essentially. Because there is in this case absolutely no indication that there are suspicious circumstances, I have come to the conclusion that the spiritual and cultural beliefs to which I have referred outweigh the public interest in knowing the precise cause of this death. For these reasons, I am prepared to make the order which I have indicated that I will make. For the sake of formality, I will put a proviso into the order: save for the taking of blood and urine samples.